Private Property Rights Up In Smoke?

In one of the most intrusive overreaches by government of private property rights since the Kelo decision, the Judiciary I Committee of the North Carolina House of Representatives passed a bill (HB 259) that would outlaw smoking in all workplaces, restaurants, bars and private clubs. Passed last week by a vote of 9-4, the bill is being pushed by Democrat Majority Leader Hugh Holliman (D-Davidson) and is scheduled to be on the floor of the full House on Tuesday. While seemingly altruistic in nature, this bill’s draconian reach would eliminate a property owner’s right to allow a legal activity to take place on his premises.

Let’s get a couple of issues off the table immediately. First, smoking is – at least currently – legal. Second, smoking is bad for your health and significantly increases the likelihood of certain forms of cancer. Third, smoking in confined spaces is bothersome to others. Secondhand smoke is smelly, irritating and, generally, a nuisance, and nobody, including most smokers, likes to be exposed to it. Fourth, prolonged exposure to secondhand smoke may have health risks, and people should not be subjected to it unwittingly.

The supporters of HB 259, of course, argue that secondhand smoke is so noxious and deadly that eliminating exposure to secondhand smoke must trump even one of the most basic of natural rights, the right to private property. HB 259 violates property rights in two ways. First, property owners, i.e., bar and restaurant owners, have a right to allow or disallow a range of legal activities from taking place in their establishments. Second, individuals in a market-based economy have the freedom to choose where to seek employment and where to consume goods and services. Competition in the marketplace, not government fiat, should dictate how a business operates and where people want to eat and drink.

HB 259 in its current form would ban smoking in any workplace, bar, restaurant, for-profit private club, and private residence where childcare is provided. Taken in its literal form, if an individual owned her own business that operated in a stand-alone office, separate from her primary residence, occupied by no one other than herself, she would not be allowed to smoke in her own office.

This bill would also prohibit private clubs, like the local country club, from allowing smoking indoors. In the free market, people who enjoy, or are willing to tolerate secondhand smoke, patronize such clubs. People who can’t tolerate smoking are just as free to go to another club – or bar or restaurant. If it turns out that a majority of customers prefer nonsmoking establishments, a majority of consumers will patronize such businesses. If this is not the case, if most people don’t really mind secondhand smoke that much, then the state certainly has no business banning smoking in public places.

Let’s not forget that every private business currently has the option of disallowing smoking in its premises. No law forces a restaurant to provide a smoking section. No law forces consumers to choose to dine in an establishment that allows smoking. Business owners choose whether to allow smoking or not. And consumers then choose whether to frequent an establishment that permits smoking. If more consumers wish to visit smoke-free businesses, the market will react and provide options. Hundreds of restaurants across the state have already made the choice to go completely smoke-free, and as consumers demand, more will continue. Similarly, employers have the right to allow or disallow smoking in their own businesses. Sure, such a policy might inconvenience some people, but any inconvenience arising from the legal use of private property pales in comparison to handing over this right to the government.

Some supporters of HB 259 argue that banning smoking is equivalent to enforcing food safety inspections in restaurants. The two cases are not at all the same because consumers are still allowed to dine in restaurants that may have a less than average safety grade. The example, though, brings up a good point. Just as food safety inspection grades are prominently posted near the entrance of every restaurant, why can’t similar “smoking allowed” signs be posted in restaurants and bars? Such a sign could read: “Smoking allowed on premises, if you do not like secondhand smoke, please do not enter.” All patrons and employees would thus be clearly informed that smoking is allowed and that if they do not like smoking then they are free to go elsewhere. Is there a greater health risk from secondhand smoke, or that spicy tuna roll from the sushi restaurant with an 82 health inspection rating? I don’t know – but I do know that each consumer should be allowed to decide that for himself.

The late economist Milton Friedman once wrote: “Many people want the government to protect the consumer. A much more urgent problem is to protect the consumer from the government.” Overregulation of business increases costs and takes decisions away from consumers. If an individual wishes to frequent a business that allows smoking, he should be free to do so. A business that wants to allow a legal activity to take place on its premises should be allowed to do so as well. The marketplace, rather than know-it-all legislators hiding behind public health issues, should be allowed to decide how a business caters to its customers. If smoking is such a public health hazard, why don’t the authors of this legislation just step forward and offer to do what they ultimately intend to do: ban the sale of tobacco products altogether.

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